Bombay High Court
Vinayak Govindrao Avkale And ... vs Sunderbai Shambhusing Kakarwal on 28 March, 2016
Bench: S.P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6507 OF 2015
1. Vinayak Govindrao Avkale PETITIONERS
Age - 60 years, Occ - Agriculture
R/o At Post Javkheda Theng (Avkale)
Taluka - Jafrabad, District - Jalna
2. Ukhai Moti Sundere,
Age - 55 years, Occ - Agriculture
R/o Tadegaonwadi, Taluka - Bhokardan,
District - Jalna
3.
Rukhmanbai Vijaysingh Kakarwal
Age - 30 years, Occ - Agriculture
R/o Tadegaonwadi, Taluka - Bhokardan,
District - Jalna
VERSUS
Sunderbai Shambhusing Kakarwal RESPONDENT
Age - 65 years, Occ - Agriculture & Household
R/o Tadegaonwadi, Taluka - Bhokardan,
District - Jalna
.......
Mr. Suhas B. Ghute, Advocate for the petitioners
Mr. D. R. Irale Patil, Advocate for the respondent
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 28th MARCH, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocates for the parties finally with consent.
2. The respondent had instituted proceedings bearing Regular
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Civil Suit No.38 of 1999 for cancellation of sale deeds dated 26 th
April, 1993 and 10th October, 1995 and for possession of
properties.
3. The suit proceeded with, however, for want of prosecution,
the suit came to be dismissed on 8th June, 2007. Till 2012, there
was no movement. No corrective action was taken in respect of
dismissal of the suit. An application Exhibit-6 came to be moved
for restoration of the matter on 30 th October, 2012 along with an
application for condonation of delay, contending that the plaintiff
came to know about the order, around October, 2012 and
accordingly the application had been moved stating that there is
delay of four months twelve days.
4. Petitioners - defendants opposed the application referring
to that there is five years' delay in making the application. There
is nothing placed on record to substantiate claims under the
application. The application contains information which is
factually incorrect and as such, the application deserves to be
rejected.
5. Perusal of the impugned order shows that the court has
not referred to the factual aspects properly and has gone by the
statements appearing in the application for condonation of delay
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that there is delay of four months and twelve days and further
that there is medical certificate, however the medical officer, who
had issued the certificate has not been examined and suddenly
veered around to allow the application, subject to payment of
costs without considering contentions on behalf of the petitioner.
6. The impugned order, having regard to aforesaid
circumstances, appears to be a non speaking order. As such, I
deem it appropriate that the order be set aside and the matter
be remitted for reconsideration by the court below.
7. In the circumstances, impugned order dated 7 th April, 2015
on Exhibit-6 in Regular Civil Suit No.38 of 1999 passed by Civil
Judge, Junior Division, Bhokardan stands set aside. The matter is
remitted for reconsideration to the trial court. It is made clear
that all the contentions and submissions are kept open for the
parties to be taken.
8. Writ petition as such, is allowed. Rule is made absolute in
aforesaid terms.
[SUNIL P. DESHMUKH, J.]
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